Pay no attention to the people behind the curtain

Tuesday, December 11, 2007

WIVA and "Judicial Restraint"

by folkbum

That WEAC was a plaintiff in the suit against the Wisconsin Virtual Academy means The Usual Suspects lined up on the matter without regard to what the law actually says. WEAC must lose, they grunted, WEAC bad.

So when WEAC won its lawsuit--an appellate court ruled last week that the school violated, among other things, state laws defining charter schools--the Usual Suspects went nuts. WEAC win? Grr! Hulk smash!

On the one hand, I recognize the anti-WEAC bias that leads to such rantings. On the other, though, the reaction to the court decision strikes me as utterly bizarre. It seems to me that the ruling last week is an obvious example of what the Usual Suspects might call "judicial restraint":

What the restraintist judge declines to do, according to most proponents of "restraint," is to read the law in ways that maximize his or her opportunity to impose his or her own notions of what is good or those that might flow from some extra-textual philosophy of governance. [. . .] What a restraintist judge promises to refrain from is the imposition of her own values in the absence of any authoritative command to do so.

In other words, even if the WIVA is successful (as it seems to be), and even if WEAC bad (as the Usual Suspects universally declare), the courts just can't rewrite the state charter school law to make the WIVA legal. The Usual Suspects, in fact, last winter led us on a virtual whirlwind tour of What Hell Would Befall Us unless we elected a "restraintist" judge to the Wisconsin Supreme Court. An "activist"--one who re-writes laws and precedent on the whim of her own notions of right and wrong--is evil incarnate and must be stopped, they told us.

I have previously argued--and likely will continue to as long as I have fingers to type--that the only really honest definition of "judicial activism" is "court decisions that I don't like." Which is why it's no shocker then that, not only are the Usual Suspects all up in arms over the ruling, they are even labeling the appellate court "liberal activist judges." (I'm sure that will come as a surprise to the conservative 2nd district court.) Rick Esenberg, who offered the definition of "restraint" cited above, is smart enough not to throw around the activist label; yet even he, as Mike Plaisted argues, dances delicately around the fact that WIVA violated the plain language of the law regarding charter schools, and instead nitpicks the court's words on parent involvement to suggest the court made a bad decision.

The fault lies not in WEAC bad or activist judges. The fault lies in state law, and over at the blog of my corporate masters, I recommend a fix. In the meantime, I suggest that those whose nightmares are filled with activist judges take two steps back and decide if, really, you want to start advocating for court decisions that advance your anti-WEAC agenda if it means rewriting the law. That smells an awful like pettiness--and hypocrisy.